The High Court quashed a summoning order under Section 482 CrPC passed against a deceased accused and without reasons for omitting other accused, directing the lower court to pass a reasoned order.
The summoning order dated 17.2.2020 is quashed; the Magistrate is directed to pass a fresh speaking and reasoned order.
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Court No. - 90
Case :- APPLICATION U/S 482 No. - 26735 of 2021
Applicant :- Banshraji Devi Opposite Party :- State of U.P. Counsel for Applicant :- Ashok Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard the learned counsel for the applicant, learned A.G.A. for the State and perused the record.
By means of this application under section 482 Cr.P.C. the applicant has invoked the inherent jurisdiction of this court to quash the summoning order dated 17.2.2020 passed by the A.C.J.M.-1, Gorakhpur in complaint no. 267 of 2018, Banshraji Devi Vs. Santosh Nishad and others, under section 323, 504, 506 I.P.C. police station Khorabar District Gorakhpur.
It is argued by the learned counsel for the applicant that the applicant is the complainant of complaint no. 267 of 2018. He has sought to quash the summoning order dated 17.2.2020 on the ground that there was general allegation against all the six persons in the said complaint. The learned lower court has summoned only one person named Sansoth Nishad whereas Santosh Nishad has died. The same fact has been stated in the statements of witnesses Sangeeta and Ramanand under section 202 Cr.P.C. Summoning of a dead person is impermissible. The lower court has not applied its judicial mind at all at the time of passing the summoning order. This is a non speaking order and the reason of non summoning the rest proposed accused is not disclosed in the impugned order.
A perusal of the statements of the witnesses named Sangeeta and Ramanand discloses that in the last line of both statements of the above witnesses, it has been stated that Santosh Nishad has died and even then the court has summoned a dead person. Moreover, six persons are alleged to have committed the said offence but the reason for non summoning the rest five persons is not mentioned in the summoning order dated 17.2.2020.
This is a non speaking order passed against a dead person. In my opinion, the same is liable to be set aside.
The summoning order dated 17.2.2020 is hereby quashed and a direction is given to the learned Magistrate concerned to pass a fresh speaking and reasoned order applying his judicial mind
going through the record properly.
The application is allowed accordingly.
Order Date :- 16.2.2022 Gss
Digitally signed by GIRAJA SHANKER SHARMA Date: 2022.02.18 11:18:30 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the summoning order passed against a deceased accused and without reasoning for not summoning other accused should be quashed.
Whether a non-speaking order invoking inherent jurisdiction violates the requirement of applying judicial mind.
4 provisions across 2 enactments
Banshraji Devi
Sadhna Rani (Thakur)
As recorded by the court registry
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